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State of Nebraska, appellee, v. 

Felipe German Mora, appellant.

___ N.W.2d ___

Filed November 9, 2017. No. S-16-1120.

1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination whether the 

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

2. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3. Sentences: Words and Phrases: Appeal and Error. An appellate court 

reviews criminal sentences for abuse of discretion, which occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

5. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/17/2017 01:11 AM CST
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6. Rules of Evidence: Hearsay: Physician and Patient. Statements made 

for purposes of medical diagnosis or treatment and describing medical 

history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar 

as reasonably pertinent to diagnosis or treatment are not excluded by the 

hearsay rule.

7. Rules of Evidence: Hearsay: Proof. In order for statements to be 

admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) 

(Reissue 2016), the party seeking to introduce the evidence must demonstrate (1) that the circumstances under which the statements were made 

were such that the declarant’s purpose in making the statements was to 

assist in the provision of medical diagnosis or treatment and (2) that the 

statements were of a nature reasonably pertinent to medical diagnosis or 

treatment by a medical professional.

8. Rules of Evidence: Hearsay. A statement is generally considered 

admissible under the medical purpose hearsay exception if gathered for 

dual medical and investigatory purposes.

9. ____: ____. Excited utterances are an exception to the hearsay rule, 

because the spontaneity of excited utterances reduces the risk of inaccuracies inasmuch as the statements are not the result of a declarant’s 

conscious effort to make them.

10. ____: ____. For a statement to be an excited utterance, the following 

criteria must be met: (1) There must be a startling event; (2) the statement must relate to the event; and (3) the declarant must make the 

statement while under the stress of the event. The true test is not when 

the exclamation was made, but whether, under all the circumstances, the 

declarant was still speaking under the stress of nervous excitement and 

shock caused by the event.

11. Trial: Evidence: Appeal and Error. The improper admission of evidence is a trial error and subject to harmless error review.

12. Criminal Law: Juries: Evidence. In a jury trial of a criminal case, an 

erroneous evidentiary ruling results in prejudice to a defendant unless 

the State demonstrates that the error was harmless beyond a reasonable doubt.

13. Trial: Convictions: Evidence. Where the evidence is cumulative 

and there is other competent evidence to support the conviction, the 

improper admission or exclusion of evidence is harmless beyond a reasonable doubt.

14. Sentences. When imposing a sentence, the sentencing court should customarily consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past criminal 

record or record of law-abiding conduct, and (6) motivation for the 

offense, as well as (7) the nature of the offense and (8) the violence 
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involved in the commission of the offense. However, the sentencing 

court is not limited to any mathematically applied set of factors.

15. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

16. ____. It is within the discretion of the trial court to impose consecutive 

rather than concurrent sentences for separate crimes.

17. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

18. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred.

19. Effectiveness of Counsel: Records: Appeal and Error. On direct 

appeal, the resolution of ineffective assistance of counsel claims turns 

upon the sufficiency of the record.

20. ____: ____: ____. The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean that it can be 

resolved. The determining factor is whether the record is sufficient to 

adequately review the question.

21. ____: ____: ____. An appellate court can determine whether the record 

proves or rebuts the merits of a claim of ineffective assistance of trial 

counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance.

22. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when allegations of deficient performance are made with enough 

particularity for (1) an appellate court to make a determination of 

whether the claim can be decided upon the trial record and (2) a district 

court later reviewing a petition for postconviction relief to be able to 

recognize whether the claim was brought before the appellate court.

23. Claims: Effectiveness of Counsel. A claim of ineffective assistance 

of counsel insufficiently stated is no different than a claim not stated 

at all.

Appeal from the District Court for Lancaster County: Jeffre

Cheuvront, Judge, Retired. Affirmed.
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Joe Nigro, Lancaster County Public Defender, and Shawn 

Elliott for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal from criminal convictions and sentences, Felipe German Mora (Mora) challenges the overruling 

of his hearsay objections, the sufficiency of the evidence, the 

excessiveness of his sentences, and whether his trial counsel 

provided effective assistance. Because we find no error and the 

record is insufficient to review the allegations of ineffective 

assistance of counsel that were sufficiently stated, we affirm 

the district court’s judgment.

II. BACKGROUND

The State charged Mora with four counts of first degree 

sexual assault of a child and one count of third degree sexual 

assault of a child. The victim in each count was B.C. Counts 

I through III alleged that between December 30, 2010, and 

September 18, 2015, Mora subjected B.C. to sexual penetration in Lincoln, Nebraska. Each count differed only as to the 

address of the crime: E Street, Theresa Street, and Saunders 

Avenue, respectively. Count IV alleged that on September 19, 

2015, Mora subjected B.C. to sexual penetration. And count V 

alleged that between December 30, 2010, and September 19, 

2015, Mora subjected B.C. to sexual contact. Because Mora 

was born in February 1983 and B.C. was born in December 

2004, at the times of the crimes, Mora was at least 19 years old 

and B.C. was under the age of 12. We recite the evidence in the 

light most favorable to the State.

The evidence at trial established that B.C. came to the 

United States when she was 6 years old. B.C. began living 
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with her mother, Marcela M., and Marcela’s partner, Mora, on 

E Street. Over time, B.C. got to know Mora and thought of 

him “[l]ike a dad.” Because Mora was acquitted on the count 

pertaining to sexual penetration at the E Street address, we 

recite only the evidence relevant to the count for sexual contact. While living at the E Street address, Mora began touching 

B.C.’s vagina under her clothes with his hands.

When B.C. was 8 years old, she moved to Theresa Street. 

B.C. testified that Mora “rubbed his fingers up and down” her 

vagina and began inserting his penis in her vagina. These acts 

occurred at the Theresa Street address more than 20 times.

When B.C. was 10 years old, she moved to Saunders 

Avenue. At that location, Mora put his penis inside of B.C.’s 

vagina on more than 10 occasions. B.C. did not tell anybody 

what Mora was doing because she was scared.

On the morning of September 19, 2015, Mora subjected 

B.C. to penile-vaginal intercourse. Defense counsel pointed 

out some inconsistencies in B.C.’s testimony with regard to 

this assault. B.C. testified in a deposition that Mora took her 

clothes off, but she testified at trial that Mora told her to take 

her clothes off and that she complied. At trial, B.C. testified 

that she did not see any ejaculate that day, but she told an 

investigator that Mora “put white stuff on [her] stomach.” B.C. 

admitted that it was difficult to remember all the details. She 

explained that the events happened a number of times, with 

Mora’s taking her clothes off at times and B.C.’s taking her 

own clothes off at other times.

On the evening of September 19, 2015, Mora took B.C. to 

the residence of his brother, Rafael German Mora (Rafael), 

while Marcela and Mora went to a casino in Council Bluffs, 

Iowa. Rafael’s partner, Maricela Saldivar, saw Rafael kissing B.C. and touching her vaginal area with his hand over 

her clothes. After Saldivar sent Rafael to the store, Saldivar 

asked B.C., “‘What is going on? Why did this happen?’” B.C. 

said that nothing happened, but then began crying and said 

that Rafael was touching her. After Saldivar testified she told 

B.C. that Saldivar needed to tell Mora what had occurred, 
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the prosecutor asked what happened. Defense counsel raised 

a hearsay objection, which the court overruled. Saldivar then 

testified that B.C. “said no because her dad was doing the 

same thing to her.” Saldivar testified that when she told Mora 

what happened was not right, Mora did not deny touching B.C. 

and instead just said that Saldivar did not know what he had 

“gone through.”

Marcela testified that as she and Mora were returning to 

Lincoln from the casino, B.C.’s aunt told Marcela over a cell 

phone that B.C. said Mora had been sexually abusing B.C. 

Marcela asked Mora if it was true, but Mora denied doing anything. Once they arrived in Lincoln, Marcela went to see B.C., 

because B.C. was crying. The prosecutor asked what B.C. 

said to Marcela, and Mora’s counsel objected as to hearsay. 

The court overruled the objection. Marcela answered: “I asked 

[B.C.] if it was true what . . . had been said about [Mora’s] 

having been abusing her sexually. [B.C.] said yes.”

Marcela testified that after police were called, Mora said, 

“‘Yes, I did it,’ but that [Marcela] was at fault because [she] 

would always leave [B.C.] with him when [Marcela] had to 

go to work.” Marcela later discovered a text on her cell phone 

from Mora, sent September 20, 2015, at 2:07 a.m. The message 

was in Spanish, but the English translation was either: “‘Sorry. 

I’ll never forget you.’” or “‘Forgive me. I will never forget 

[the] two of you.’”

On September 20, 2015, Eileen Bonin, a sexual assault nurse 

examiner, examined B.C. In her experience, it was infrequent 

to find injuries when conducting sexual assault examinations. 

Bonin observed some redness on B.C.’s right labia minora, 

which was an unusual finding. Defense counsel raised a hearsay objection when the prosecutor asked what B.C. told Bonin 

about what had occurred, but the court overruled the objection. 

Bonin testified that B.C. said her “stepdad, [who was] not 

really her stepdad,” had been touching B.C. since she was 7 

years old and that her uncle had been touching her for approximately 9 months. Bonin testified that B.C. told her that Mora 

“put his private parts in her private parts.”
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On September 20, 2015, an investigator used cotton swabs 

to obtain DNA from Mora’s hands and penis. The swab from 

Mora’s penis revealed a mixture of DNA of at least two 

individuals. B.C. was included as a major contributor, but 

Mora was excluded. In other words, B.C.’s DNA was on 

Mora’s penis.

On September 22, 2015, Dr. Stacie Bleicher, the medical 

director at a child advocacy center, performed a followup 

examination on B.C. During Bleicher’s testimony, when the 

prosecutor asked if B.C. said anything that was significant to 

Bleicher, defense counsel objected on the ground of hearsay. 

After the court overruled the objection, Bleicher answered that 

B.C. said she “had sexual contact by both her stepfather and 

. . . her uncle.”

An inmate incarcerated at prison testified about what Mora 

told him while they were both being held at the Lancaster 

County jail. The inmate asked Mora about his case, and Mora 

said that he did not do the crime. But the next day, Mora told 

the inmate that he had sexual intercourse with a young female, 

his stepdaughter. The inmate had hoped to get some leniency in 

court for this information, but at the time of his testimony, he 

had not received any accommodation nor been offered a deal. 

The inmate admitted that he had previously cooperated with 

authorities on a number of occasions.

After the State rested its case, the defense did not call any 

witnesses or offer evidence.

The jury found Mora not guilty of count I, but guilty of the 

other counts. The district court sentenced Mora to imprisonment as follows: on count II, 30 years, 15 of which were a 

mandatory minimum, to life; on count III, 30 years, 15 of 

which were a mandatory minimum, to life; on count IV, 30 

years, 15 of which were a mandatory minimum, to life; and 

on count V, “a period of 3 years.” The court ordered that 

counts II and III run concurrently with one another but consecutively to counts IV and V. It ordered that counts IV and 

V were to be served consecutively to each other and consecutively to counts II and III.
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Through counsel different from trial counsel, Mora timely 

filed an appeal.

III. ASSIGNMENTS OF ERROR

Mora assigns that the district court erred in (1) permitting 

the State to introduce hearsay statements of B.C. based on 

the medical purpose and excited utterance exceptions to the 

hearsay rule, (2) adjudging him guilty when the evidence was 

insufficient, and (3) imposing excessive sentences.

Mora also assigns that he was denied the right to the effective assistance of counsel due to counsel’s failure to (1) adequately communicate in order to prepare a defense and explore 

options, (2) properly advise him about the right to testify, (3) 

have the penile swab retested and retain an expert to refute the 

State’s DNA evidence, and (4) explore calling character witnesses at trial.

IV. STANDARD OF REVIEW

[1] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination whether the court admitted 

evidence over a hearsay objection or excluded evidence on 

hearsay grounds.1

[2] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. The relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt.2

1 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).

2 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
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[3] An appellate court reviews criminal sentences for abuse 

of discretion, which occurs when a trial court’s decision is 

based upon reasons that are untenable or unreasonable or 

if its action is clearly against justice or conscience, reason, 

and evidence.3

[4,5] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law.4 In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to 

conclusively determine whether counsel did or did not provide 

effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance.5

V. ANALYSIS

1. Hearsay

(a) Medical Purpose Exception

Mora argues that the district court erred in admitting B.C.’s 

statements to Bonin and Bleicher that Mora sexually abused 

her. Mora contends that such statements were not pertinent to 

medical diagnosis or treatment and that identification of the 

abuser should not have been permitted because he was not in a 

position to return home. We disagree.

[6-8] Statements made for purposes of medical diagnosis 

or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar 

as reasonably pertinent to diagnosis or treatment are not 

excluded by the hearsay rule.6 In order for statements to be 

admissible under rule 803(3), the party seeking to introduce 

the evidence must demonstrate (1) that the circumstances 

3 State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).

4 State v. Mendez-Osorio, supra note 2.

5 Id.

6 Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016).
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under which the statements were made were such that the 

declarant’s purpose in making the statements was to assist 

in the provision of medical diagnosis or treatment and (2) 

that the statements were of a nature reasonably pertinent to 

medical diagnosis or treatment by a medical professional.7 A 

statement is generally considered admissible under the medical purpose hearsay exception if gathered for dual medical and 

investigatory purposes.8

B.C.’s statements to Bonin and Bleicher meet the admissibility requirements. B.C.’s statement to Bonin, a sexual assault 

nurse examiner, came during Bonin’s examination which was 

performed in a hospital’s emergency room. Bonin testified 

that in conducting an examination, she wants to find out what 

happened to help with her medical assessment. B.C.’s statement to Bleicher, a doctor, occurred while Bleicher performed 

a followup examination. Bleicher testified that she makes 

inquiries about what happened in order to determine whether 

any further testing may be necessary and to help guide her 

medical evaluation.

We have previously touched on whether statements regarding the identity of the perpetrator could be admitted under rule 

803(3). In State v. Vigil,

9

 we recognized that identity can be 

pertinent to diagnosis and treatment:

While statements relating to fault are generally not 

admissible under rule 803(3), when a child is sexually 

abused, and especially when the child has a familial relationship with the child’s abuser, the identity of the perpetrator is reasonably pertinent to diagnosis and treatment, 

because the victim cannot be effectively treated if sent 

right back into the abuser’s clutches.

Mora claims the above reason for allowing the identity of the 

perpetrator is inapplicable here. He points out that in Vigil, the 

defendant was going to return home in approximately 1 week. 

7 State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

8 Id.

9 Id. at 141, 810 N.W.2d at 698.
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On the other hand, Mora states that “it is fanciful to believe 

that [he] would have been back in the family home.”10 But it 

was not “fanciful” at the time of the examinations: Mora had 

not been charged with a crime at the time of Bonin’s examination, and Bleicher’s examination occurred on the same day that 

the State charged Mora with sexual assault.

Regardless, in Vigil, we concluded that the frequency and 

nature of the victim’s sexual contacts with a perpetrator are 

part of the victim’s medical history. The same is true of B.C.’s 

sexual contacts with Mora. We conclude the district court did 

not err in allowing Bonin and Bleicher to testify as to what 

B.C. told them during their medical examinations.

(b) Excited Utterance Exception

Mora next argues that the district court erred by admitting 

B.C.’s statements to Marcela and to Saldivar under the excited 

utterance exception. B.C. made the statements after Rafael 

had touched her, and Mora contends that “[t]he startling event 

which the State relied upon did not relate to [Mora’s] purported 

assault of the victim.”11

[9,10] Excited utterances are an exception to the hearsay 

rule, because the spontaneity of excited utterances reduces 

the risk of inaccuracies inasmuch as the statements are not 

the result of a declarant’s conscious effort to make them.12

For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling event; (2) the 

statement must relate to the event; and (3) the declarant must 

make the statement while under the stress of the event. The 

true test is not when the exclamation was made, but whether, 

under all the circumstances, the declarant was still speaking 

under the stress of nervous excitement and shock caused by 

the event.13

10 Brief for appellant at 35.

11 Id. at 30.

12 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

13 Id.
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[11-13] Assuming without deciding that the testimony was 

inadmissible hearsay, any error was harmless. The improper 

admission of evidence is a trial error and subject to harmless 

error review.14 In a jury trial of a criminal case, an erroneous 

evidentiary ruling results in prejudice to a defendant unless 

the State demonstrates that the error was harmless beyond 

a reasonable doubt.15 Where the evidence is cumulative and 

there is other competent evidence to support the conviction, 

the improper admission or exclusion of evidence is harmless 

beyond a reasonable doubt.16 Here, there was ample evidence 

to support Mora’s convictions even without these statements: 

B.C. testified that the assaults occurred, a swab of Mora’s 

penis contained B.C.’s DNA, and Mora admitted the assaults 

to Marcela and an inmate.

2. Sufficiency of Evidence

Mora attacks the sufficiency of the evidence in a number of 

ways. He claims that the State’s medical evidence and DNA 

evidence did not establish Mora sexually assaulted B.C. He 

also asserts that his purported admissions to Marcela and the 

inmate were unreliable. Mora further argues that B.C.’s testimony provided little detail about the assaults and that she 

was inconsistent with regard to some of the details about the 

September 19, 2015, assault. But these attacks are directed 

at the credibility of witnesses and the weight to be given 

to evidence—they were matters for the jury to consider. By 

returning guilty verdicts, the jury rejected these arguments. On 

appeal, our role is different.

As set out in our standard of review, the relevant question 

for an appellate court in reviewing the sufficiency of the evidence is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 

14 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).

15 Id.

16 Id.
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have found the essential elements of the crime beyond a reasonable doubt.17 Clearly, one could.

As applicable to the facts of this case, a person at least 

19 years of age commits sexual assault of a child in the first 

degree when he subjects another person under 12 years of 

age to sexual penetration.18 And a person at least 19 years 

of age commits sexual assault of a child in the third degree 

when he subjects another person 14 years of age or younger 

to sexual contact and does not cause serious personal injury 

to the victim.19 At all relevant times, Mora was at least 19 

years of age and B.C. was a person under 12 years of age. 

B.C.’s testimony established that Mora subjected her to penilevaginal intercourse and that he touched her vagina with his 

hands at various locations in Lincoln. The evidence supported 

Mora’s convictions.

3. Excessiveness of Sentences

Mora argues that the district court abused its discretion by 

imposing excessive sentences. He does not assert that the sentences were outside the statutory ranges; rather, he contends 

that the court should have imposed the minimum sentence 

permitted by law, should have not imposed a life sentence as 

the maximum term, and should have run all of the sentences 

concurrent with one another.

[14-16] When imposing a sentence, the sentencing court 

should customarily consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) 

the nature of the offense and (8) the violence involved in the 

commission of the offense. However, the sentencing court is 

not limited to any mathematically applied set of factors.20 The 

17 State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).

18 See Neb. Rev. Stat. § 28-319.01(1)(a) (Reissue 2016).

19 See Neb. Rev. Stat. § 28-320.01(1) and (3) (Reissue 2016).

20 State v. Dehning, supra note 17.
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appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the 

defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.21 It is within the 

discretion of the trial court to impose consecutive rather than 

concurrent sentences for separate crimes.22

At the time of sentencing, Mora was 33 years old. Mora 

described himself as coming from a “poor and humble family” 

in Mexico. His prior criminal record consisted of minor traffic violations. And his score on a sex offender risk assessment 

tool placed him in the low risk range. But as the district court 

stated: “[S]ociety has an obligation to protect those of a tender age who are vulnerable and unable to protect themselves. 

It is clear that [B.C.] loved you, she considered you to be her 

father and trusted you, and you took advantage of that trust 

and violated that trust.” And the violations occurred repeatedly over 4 years. We conclude that the court did not abuse its 

discretion in imposing Mora’s sentences.

4. Suggestion of Plain Error

[17] The State asserted in its brief that the sentence 

imposed for third degree sexual assault of a child presented plain error. According to the State, Neb. Rev. Stat. 

§ 29-2204.02(4) (Reissue 2016) required the district court to 

impose an indeterminate sentence. Plain error may be found 

on appeal when an error unasserted or uncomplained of at 

trial, but plainly evident from the record, prejudicially affects 

a litigant’s substantial right and, if uncorrected, would result 

in damage to the integrity, reputation, and fairness of the 

judicial process.23

However, at oral argument, counsel for the State forthrightly conceded that there was no plain error. We agree. By 

its terms, § 29-2204.02(4) applies to a Class IIIA felony “for 

21 Id.

22 State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).

23 State v. Mendez-Osorio, supra note 2.
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an offense committed on or after August 30, 2015.” But in 

this case, the charged offense straddled August 30, 2015. The 

jury did not make any specific finding as to when the crime 

occurred, and B.C.’s testimony about Mora’s assaults could 

cover dates both before and after August 30. Another statute 

adopted at the same time as § 29-2204.02(4) states that “an 

offense shall be deemed to have been committed prior to 

August 30, 2015, if any element of the offense occurred prior 

to such date.”24 In the absence of a specific jury finding demonstrating that the offense was “committed on or after August 

30, 2015,”25 we find no plain error.

5. Ineffective Assistance of Counsel

[18] Finally, Mora claims that he received ineffective assistance of trial counsel. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant 

must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is 

apparent from the record. Otherwise, the issue will be procedurally barred.26

[19,20] On direct appeal, the resolution of ineffective assistance of counsel claims turns upon the sufficiency of the 

record.27 The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean that 

it can be resolved. The determining factor is whether the record 

is sufficient to adequately review the question.28 Both parties 

assert that the record on appeal is insufficient to address any of 

the ineffective assistance of counsel claims.

[21-23] But an appellate court can determine whether the 

record proves or rebuts the merits of a claim of ineffective 

24 Neb. Rev. Stat. § 28-116 (Reissue 2016).

25 § 29-2204.02(4).

26 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

27 Id.

28 Id.
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assistance of trial counsel only if it has knowledge of the 

specific conduct alleged to constitute deficient performance.29

An ineffective assistance of counsel claim is raised on direct 

appeal when allegations of deficient performance are made 

with enough particularity for (1) an appellate court to make a 

determination of whether the claim can be decided upon the 

trial record and (2) a district court later reviewing a petition 

for postconviction relief to be able to recognize whether the 

claim was brought before the appellate court.30 A claim insufficiently stated is no different than a claim not stated at all.31

We assess the sufficiency of Mora’s claims of ineffective 

assistance of counsel.

(a) Failure to Adequately 

Communicate

Mora assigns that trial counsel failed to adequately communicate with him to prepare a defense and to explore his 

options. Mora contends that counsel “only met with him a few 

times with an interpreter prior to the commencement of the 

jury trial”32 and that counsel “did not engage in meaningful 

conversations about the State’s evidence and what evidence 

[Mora] had to rebut the charges he faced.”33 But these statements are not sufficient allegations of deficient performance. 

Mora also claims that due to the lack of communication, “he 

was unable to make an informed decision about whether to 

engage in plea negotiations, whether to accept a plea offer, 

what defense to present at trial and whether he should testify 

or remain silent.”34 But this is a conclusory statement that also 

fails to set forth counsel’s deficiency. We believe the only 

29 Id.

30 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

31 State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

32 Brief for appellant at 46.

33 Id. at 46-47.

34 Id. at 47.
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sufficiently specific allegation regarding failure to communicate is that trial counsel “did not provide any discovery to 

him, nor did he review the discovery that he had obtained from 

the State with [Mora].”35 The record is insufficient to resolve 

this claim.

(b) Right to Testify

Mora argues that counsel failed to properly advise him 

about his right to testify and wrongly recommended that he not 

testify. This allegation of deficient performance is sufficiently 

stated, but the record is insufficient to review it.

(c) Penile Swab

Mora claims that counsel performed deficiently by failing 

to have the penile swab retested and failing to retain an expert 

witness to refute the State’s DNA evidence. He backs up this 

statement by making specific arguments about what counsel 

should have done and why. This allegation is also sufficiently 

stated, but the record is insufficient to resolve it.

(d) Character Witnesses

Finally, Mora assigns that counsel failed to explore calling 

character witnesses and to call such witnesses at trial. Mora 

states that he provided information about witnesses counsel 

could have interviewed. He states that “[t]hose witnesses were 

individuals he worked with and the relatives and friends who 

had seen him with [B.C. and Marcela] prior to the accusations being made against him.”36 Although Mora alludes to 

what the witnesses would have testified to, he did not name 

the individuals.

We have required a significant degree of specificity in such 

claims. We explained that “we can think of no good reason 

why [an appellant] would be unable to give appellate counsel 

the names or descriptions of the uncalled witnesses he claims 

35 Id.

36 Id. at 53.
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he informed trial counsel of.”37 And we previously expressed 

concern “with the lack of any specificity as to who those 

uncalled witnesses were from the standpoint of a potential 

postconviction court’s ability to identify if a particular failure to call a witness claim is the same one that was raised on 

direct appeal.”38

The same problem is present here. Mora’s purported 

“descriptions” are too broad and indefinite and thus, fail 

to alleviate our concern. Because Mora did not identify or 

specifically describe the witnesses who he contends counsel 

should have called upon, he failed to make sufficiently specific 

allegations of deficient conduct.

VI. CONCLUSION

We conclude that the district court properly admitted statements under the medical purpose hearsay exception, that 

any error in admitting statements under the excited utterance 

exception was harmless, that the evidence was sufficient, and 

that the sentences imposed were not excessive or plainly erroneous. Finally, we conclude that Mora’s claims of ineffective 

assistance of counsel are either not sufficiently presented for 

our review or not able to be reviewed on the record before us. 

We therefore affirm the judgment of the district court.

Affirmed.

37 State v. Abdullah, supra note 31, 289 Neb. at 134, 853 N.W.2d at 867.

38 Id. at 133-34, 853 N.W.2d at 867.